Dr. Anthony Diala
Towards integrated legal orders in sub-Saharan Africa
Abstract
In response to unprecedented socio-economic changes induced by globalisation, African states have undertaken extensive reforms of family laws over the past seven decades. However, these reforms are controversial because they compel communalisic indigenous laws to conform to individualistic human rights values. The trajectory of cultural contestations shows that judges usually invalidate indigenous customs that they deem offensive to human rights. Significantly, this judicial approach seems to follow the same reasoning as colonial era standards of equity, fairness, and natural justice, otherwise known as the ‘repugnancy test.’ In many cases, neither judges nor legislators address the dissonance between the agrarian origins of indigenous laws and the modern settings in which these laws are applied. Instead, law reforms concertedly construct African customs into universalist images of the rights to dignity, equality and non-discrimination. The resultant conflict of laws obscures the legal pluralist dialogue occuring in African social fields. I introduce the notion of constructive law reforms into the legal pluralism discourse, arguing for policy emphasis on how the foundational values of indigenous laws compel Africans to adapt their normative behaviour in dynamic, interconnected social fields. Against the background of globalisation and legal history, my project provides a data-led framework for managing the integration of state and indigenous legal orders in Africa.